Joan Huffman is the Texas Senator (and former Harris County criminal judge) responsible for Code of Criminal Procedure article 38.37 section 2, which provides that extraneous offenses are admissible in the trial of someone accused of a sex crime with a child to prove “the character of the defendant and acts performed in conformity with the character of the defendant.” My brief on the unconstitutionality of that statute is here.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedurearouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that :(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

That is what Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021, will look like if Huffman’s proposed amendment, SB 344, passes in its current form. It is not quite right, but is much closer to constitutional than the statute as it exists now. It will also be much harder for the State to prove—constitutionality and prosecutorial convenience are a zero-sum game.

In subsection (a) Huffman proposes eliminating the “represents himself or herself to be” language from the definition of minor, so that a “minor” will be either an actual minor or someone the defendant believes to be a minor. So on the one hand if the “minor” is a cop the State will have to prove beyond a reasonable doubt that the defendant believed the cop’s “minor” schtick.

On the other hand it appears at first blush that the revised statute would allow a defendant to be held liable for talking dirty to an actual minor pretending to be an adult, even if the defendant believed the minor to be an adult, as an adult can be held liable for having sex with a minor who is pretending to be, and believed to be, an adult.

It would appear that way only at first blush, though, because the dirty talk prohibition now requires the intent to commit a sex crime against a child. So even if the “minor” is a minor pretending to be an adult the State will have to prove that the defendant intended to do something to a child, which presupposes that the defendant believed a child was somehow involved.

I’m not entirely happy with describing the offense as “communicat[ing] in a sexually explicit manner with a minor” “with the intent to commit” (for example) sexual assault. At best it’s clumsy, with no explicit connection between the sexual assault and the communication.

At worst it renders the statute unconstitutional again. The communication itself is constitutionally protected, and the state of mind itself is constitutionally protected. It is only when the intent is put into action, either physically or with a solicitation, that it can be constitutionally forbidden. “Incitement” is only unprotected if the speech is intended to induce or commence illegal activities.

So, for example, if D communicates in a sexually explicit manner with A while he intends to commit sexual assault with an unrelated B, the communication would still be constitutionally protected.

Or if D communicates in a sexually explicit manner with A and intends to commit sexual assault with A, but if the speech is not intended to induce or commence the sexual assault or any other illegal activity, the speech is constitutionally protected.

This may be a narrow class of protected speech that is criminalized; I haven’t yet worked through whether this invalidates the statute as to D or as written, but it seems to me that subsection (b) could be more clearly written:

(b) A person who is 17 years of age or older commits an offense if, with the intent to commitinduce or commence commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with athe minor; or

(2) distributes sexually explicit material to athe minor.

With these small changes, the statute is almost in line with First Amendment incitement law. The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck “the imminent” in between “commence” and “commission,” you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something):

(b) A person who is 17 years of age or older commits an offense if, with the intent to induce or commence the imminent commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with the minor; or

(2) distributes sexually explicit material to the minor.

So that’s (b).

Subsection (c), as it is now, is unconstitutional because, in conjunction with subsection (a)(1)’s definition of minor to include anyone who represents himself to be a minor; and subsection (d)’s exclusion of fantasy and lack-of-intent defenses, it criminalizes speech that is not incitement, and is therefore protected by the First Amendment. Huffman’s edits to (a)(1) and (d) eliminate this unconstitutionality. To nail it down, imminence should be an element in (c) as well—

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will imminently engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

—but the lack of imminence is a minor problem compared with the explicit elimination of fantasy and lack-of-intent defenses.

Subsection (e)(2) still creates a defense for the defendant who, believing a cop who is older than the defendant to be a minor, solicits the cop to have sex. There is no good reason that a 33-year-old defendant can legally solicit a minor who happens to be a 36-year-old cop, but a 40-year-0ld defendant cannot. While the legislature is mucking around in this statute it ought to rewrite (e)(2) as well:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

…

(2) the actor was not more than three years older than the minorthe younger of (A) the age of the minor; and (B) the age the actor believed the minor to be; and the minor consented to the conduct.

There’s probably an even better way to write that, but you get the gist: the age defense should be available if the nineteen-year-old defendant believed he was chatting with a sixteen-year-old, but it should not be available if the nineteen-year-old defendant believed he was chatting with a thirteen-year-old but was actually chatting with a forty-year-old cop (because, as a rule of thumb, a “thirteen-year-old” cruising for sex on the Internet is a forty-year-old cop).

I wouldn’t ordinarily suggest improvements to make a penal statute constitutional, but since I don’t have a philosophical problem with the state punishing people who are truly trying to pick up kids for sex on the Internet, and Joan Huffman seems to be headed in the right direction on this one, I’m happy to help.

I would never say that I don’t need to prove that I don’t need to prove that I’m opposed to cops being murdered. Because it’s obvious that I don’t need to prove that I don’t need to prove that I oppose murder, and rape, and revenge porn, and all of the other bad things. It goes without saying. And nobody would suggest that I need to prove that I need to prove that I’m opposed to bad things unless I proactively insisted that such was not the case.

So, once and for all, not only am I opposed to all the bad things, but also I don’t need to prove it. And furthermore I don’t need to prove that.

I hope it’s obvious. I would hate to have to prove that I don’t need to prove that I don’t need to prove that I oppose all of the bad things.

Some lawyers are reportedly interpreting Ethics Opinion 646 to mean that they can give their clients copies of discovery produced under Article 39.14 of the Texas Code of Criminal Procedure, despite Article 39.14(f)‘s admonition that:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

39.14(f) is the law. Ethics Opinion 646 doesn’t change that, and the opinion really couldn’t be more clear:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.

The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.

There are whiny chickenshit prosecutors who are cruising for examples of defense lawyers violating the Michael Morton Act, so that they can get their tame scared-white-republican legislators to shove through changes.

Don’t be that guy who gives his clients copies of offense reports and screws up discovery for the rest of us.

Hypo: In a Texas criminal case, defense counsel receives a video recording in discovery from the state. Assume that she needs to prepare her witnesses for cross-examination by talking to them about the contents of the video. The defendant forbids her from showing the video to the witnesses or even telling them what it shows. She does her best to convince him to allow it, but he refuses.

How does this shake out?

Generally, the defendant has the right to make the strategic decisions in his case (plead guilty? jury or bench trial? jury or judge for punishment? seek lesser-included offense?) but trial counsel makes the tactical decisions (what witnesses to call, what questions to ask).1Good judgment isn’t what made the client a client. A lawyer has to maintain control over the defense. Often a client will want the lawyer to do things that would be disastrous to the client’s strategic goals; a lawyer can and should refuse. Whether to show the video to potential witnesses, to prepare them to testify, seems to fall under the category of “tactical decisions.” The lawyer has a responsibility to keep the client from making disastrous mistakes. And the video isn’t a secret—the State had it first.

But in Texas criminal cases, according to Rule of Evidence 503(b)(2),

a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

That seems pretty clear: the lawyer wouldn’t have known about the contents of the videotape if not for the attorney-client relationship, so the client has a privilege to prevent her from disclosing them.

How does this clash between the best interest of the client and the lawyer-client privilege shake out?

The lawyer may be tempted to do what is best for the client’s case, because that’s what she has been hired to do. The lawyer must resist the temptation. There’s ego involved—for her own gratification the lawyer would rather win the case than lose it. The lawyer must set aside her ego.

What if the lawyer will, following the client’s instructions, be ineffective?

Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client’s clear and unambiguous instructions not to present evidence.

Wood v. Quarterman, 491 F.3d 196, 203 (5th Cir.2007).

The privilege must win. The privilege, sacrosanct, should always win. The criminal-defense lawyer should, like Pat McCann, be willing, to go to jail to preserve the privilege.

But what if the lawyer interprets 503(b)(2) nonliterally, so that “any other fact” does not include information that would not be covered by the attorney-client privilege under the rules that we learn in law school?

That’s not what the rule says, but perhaps the lawyer could, by stretching, reasonably read the rule to allow disclosure of the video to the potential witnesses. Maybe the lawyer is setting aside her ego to make this call. Maybe the client’s concerns are misplaced, and disclosure would truly be in his best interest. Maybe if the client grieves the lawyer the State Bar would agree with the lawyer’s interpretation.

The best interest of the client and the lawyer-client privilege are guiding principles. If not for clients we would not have jobs, and if not for the privilege our clients could not trust us and we could not do our jobs. That the privilege must win is my own judgment. A lawyer might feel that the client’s best interest must win. I would call this “playing God,” disagree with it in harsh terms, and file a grievance if the client sought my help.

Or a lawyer might weight the two principles equally; in that case (and only in that case) it would be acceptable for the lawyer to consider policy, which can’t trump either the privilege or the client’s best interest. For the criminal-defense lawyer, policy favors privilege. In the vast majority of cases the client will benefit from reading the privilege more broadly, and if we accede to a narrow reading in one case we may sacrifice our ability to argue in all of those other cases that the rule says what it means.

Others have characterized the dichotomy as “fundamental” vs. “strategic” decisions, a mixing of metaphors. ↩

The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.

The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad. …

…

“In our view, we’re just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image,” said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. “And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior.”

The letter suggested that Mesnard change the law to narrow its scope to address only “revenge porn” without interfering with free speech rights. Specifically, they don’t want it to apply when the publication was in the public interest or newsworthy.

And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create “a big old loophole.”

“Newsworthy,” like “in the public interest,” is a subjective test that state actors could use to decide whom to arrest and whom not to. As Professor Neil Richards has written, “The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]”

Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.

There’s going to be a “big old loophole” in any revenge-porn statute; that loophole is called “free speech.” It is not possible to “address only ‘revenge porn’ without interfering with free speech rights.”

If the statute requires an intent to harm and has a newsworthiness or public-interest exception, it may be narrow enough to satisfy the booksellers’ interests, but it’s still going to be unconstitutional. “Everyone agrees it’s bad behavior” is not a category of unprotected speech.

In short, the judiciary acting as an adjunct to the prosecution shouldn’t surprise anyone. Elected judges identify with the state. There are very few who will decide close calls for the defense. There are many more who will bend over backwards to make sure the state wins. What Coker did with Jones is little different than what Narcise does with Cousteau. But Narcise doesn’t text Cousteau, or if he does Cousteau is smart enough not to commit the texts to paper.

Now I’ve found a judge who is so brazen about coaching prosecutors that he doesn’t care who knows it.

Meet Billy Harmon, Judge of Harris County Criminal Court at Law Number Two. Continue reading →

I don’t think I’d heard of Brad Spangler before today, when this popped up in my feed reader:

The following message was posted on Facebook, allegedly from Brad Spangler, and I find it difficult to believe. If someone out there is trying to malign him or malign libertarianism through him, then it is a viciously sick joke. I’m suspending judgment until more is known, and I hope everyone else does the same. I am not providing the FB link because the commentary thread has been reduced to spewing hatred.

The message (purportedly) from Brad Spangler:

“…During a particularly bad period in 2004, I molested [a young relative]. I did not do so forcibly, but the betrayal of trust and resulting potential emotional fallout for her has weighed heavily on my conscience ever since, to the point of doubting my sanity and refusing to believe I had, or even could have, done such a thing.

“While I believe justice ought to be handled as a matter of restitution to the victim rather than punishment, my declining physical health, apparently from myotonic dystrophy, means I probably don’t have many years left to live in which attempts could be made at restitution. With the laptop going in for warranty exchange, worries about discovery of which web sites I had visited and further questions that might raise convinced me that facing the currently dominant accountability process, regardless of what’s right or wrong with it, is the best thing I can do for my [relative].”

In case my formatting isn’t clear, the first two paragraphs are my excerpt of Wendy McElroy’s words. The last two paragraphs (in quotes) are my excerpt of Brad Spangler’s purported message, which McElroy quoted in full.

Go ahead and read it. I’ll wait.

Spangler was an anarchist philosopher, one of the founders of the Center for a Stateless Society (C4SS).

McElroy links to this post by Thomas L. Knapp. Knapp also wrote this post, on C4SS’s response to Spangler’s post.

Of course you are against all the bad things. So you don’t need to say it. Please don’t.

I understand the impulse: if you publicly oppose uncritically believing people who make rape accusations, you will be accused by small-minded people of favoring sexual assault. If you publicly oppose criminalization of anything, zealots of criminalization will accuse you of favoring that thing. If you defend people accused of crimes, the booboisie will infer that you support those people and their crimes.

The disclaimer is a preemptive strike against this illogical inference. But even if it’s true, it is not going to convince anyone. (If your disclaimer is, “I am a strong proponent of free speech, but…”, it’s probably not true; the second half of your sentence will tell.)

The great mass of readers are either too poorly educated to tell the difference between procedure and substance, or too dishonest to acknowledge it. The ignorant group doesn’t understand that you can fight criminalization without supporting bad conduct; the dishonest group understands, but pretends otherwise in order to quash dissent. (I’m sure you all have favorite examples of the latter, you misogynistic rape apologist you.)

This is our culture: subtlety is lost. Ignorant people may be educable, but you can’t make dishonest people honest. (Protip for telling them apart: you can’t. So you get to pick between trying to educate the dishonest, and giving up on the ignorant.)

By proclaiming your bona fides, you play into this cultural trend. You go on the defensive before you’ve been irrationally attacked. Even though you don’t mean to, you lend legitimacy to the illogical inference, opening for discussion whether you are in fact in favor of revenge porn / sexual assault / crime, when you intend to discuss how best to deal with revenge porn / sexual assault / crime.

The question comes up time and again: should lawyers portray the legal system as some wish it were, or as it really is?

Those who think we should portray the legal system as they wish it were—an accurate instrument for finding the truth, with rules that work and players who are above reproach as long as they follow those rules—are deceivers. Their deception has a purpose, perhaps—to “fake it until we make it,” or to keep the rubes from rioting—but they are deceivers nonetheless.

Those who portray the legal system as it really is are truth-tellers. When truth-tellers speak, deceivers accuse us of bringing the profession into disrepute and try to shut us down.

[Dalhousie University lawprof Elaine] Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual assaults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for example, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that “in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light suggestive questioning or aggressive confrontational examination.”

According to Craig, even if lawyers have a duty to engage in aggressive cross-examination, “that shouldn’t translate into your marketing platform.”

“No one is constitutionally entitled to any defence possible,” she continues.

“Whatever we rely on as the legal profession to justify that kind of conduct, that doesn’t apply to marketing.”

Fascinating, professor.

Craig seems to doubt that aggressive confrontational cross-examination is justified. But even accepting for the sake of the argument that it is, she opines that advertising such advocacy in sex-assault cases is unjustified. So it’s not in all cases that lawyers are forbidden, in Craig World, from advertising their special skills, nor in all criminal cases, but only in sex-assault cases.

I don’t know “law society rules on marketing”; they may indeed forbid “implying aggressive advocacy” in sex-assault cases. Canada’s a strange place, eh? Craig’s complaint, more specifically, is that such advertising may be inconsistent with:

…the rule requiring lawyers to encourage public respect for the administration of justice and to conduct oneself in a manner that reflects favourably on the legal profession and that inspires the confidence, respect and trust of the community, the duty to maintain client confidentiality and to uphold the reputation of the legal profession, the duty of competence, the obligation to communicate in a manner that is consistent with the proper tone of a professional communication from a lawyer, and the requirement that public statements by a lawyer concerning a client’s affairs are in the best interests of the client and not for the purpose of publicity or self-promotion…

So advertising that doesn’t encourage public respect for the administration of justice is improper. But whether advertising encourages public respect for the administration of justice is mostly subjective. Professor Craig may have one view of what the public should look for in a criminal-justice system (gentle treatment of complainants); I have a very different one (a fighting chance for the accused).

By acting as though sex-assault complainants aren’t given any more special treatment than the law requires, Adler Bytensky encourages public respect for the administration of justice, as the law society rules require. He’s telling the truth. It’s only those who think that sex-assault cases call for less due process who will see aggressive cross-examination of a sex-assault complainant as a bad thing for the system.

The criminal-justice system is imperfect, and it’s important that it get things as right as possible. Aggressive cross-examination, when it is appropriate, is an engine for getting to the truth. If the Crown can’t prove its case in the face of a zealous defense, then the system has worked.

Even if the defendant really did it.

“All parties were drinking at a New Years Eve Party. The Complainant became intoxicated and unconscious. The Complainant’s partner and L.H. placed the Complainant in L.H.’s bed due to her intoxicated state. The Complainant became ill, thus her partner and L.H. cleaned up both the Complainant and the area where she became ill. The next morning the Complainant alleges L.H. sexually assaulted her in her sleep. DNA analysis was completed on the Complainant’s underwear and tested positive for L.H.’s DNA. Results: Jury acquitted Mr. L.H. of all charges.”

Craig then noted some of her concerns: “Individuals cannot consent to sex while unconscious. By describing this sequence of events, and then noting that the accused’s DNA was found in the complainant’s underwear but not offering any other details of the case besides the acquittal, this advertisement may leave the reader with the impression that the client was factually guilty. No other information about the case is given.”

Any practicing lawyer recognizes that there are other explanations for these facts than factual guilt. Among them:

LH may have had consensual sex with Complainant before she was intoxicated;

LH may have had consensual sex with Complainant after she regained consciousness;

LH may have had sex with Complainant’s partner, who then touched LH’s underwear;

Someone may have planted LH’s DNA or Complainant’s underwear;

Complainant may have sat on something containing LH’s DNA; and

Complainant may have sexually assaulted LH after she regained consciousness.

That strikes me as the point of the lawyer’s (Sean Robichaud of Ontario) advertising: a story that appears to people like Craig like a foregone conclusion of guilt may, in the hands of the right lawyer, turn into an acquittal.

And sure there’s much more to Robichaud’s story than he’s telling in his ad. That’s just a teaser. Robichaud gives us only the facts that the client, the Crown, and Robichaud might have started with when the client was charged, and tells us what the ultimate result was. What happened in between is the work that Robichaud got paid to do. It’s a before-and-after shot. While Robichaud may advertise how he worked his magic, he has no obligation to.

Sure, this might leave the reader with the impression that LH was factually guilty (and I would take issue with it if the reader could determine LH’s identity from the information Robichaud gives). But “factually guilty people are sometimes acquitted” isn’t the indictment of the system that “factually innocent people are sometimes convicted” is. The easier we make it to convict the factually guilty, the easier it becomes to convict the factually innocent. Yes, factually guilty people are sometimes acquitted. That’s the truth.

Craig doesn’t take issue with the advertising as deceptive. She can’t: although told with a purpose, it’s truthful. Deception would lie in suppressing the truth.